The Law @ Work

Court Not So High on Employee with High Opinion of Herself

Luckily for employers, an employee’s high opinion of her own qualifications for a promotion need not factor into the promotion decision. In a recent case before the United States District Court for the District of Massachusetts, an employee’s personal opinion that she was the superior candidate for the promotion was not sufficient to show that the employer’s reason not to promote her was pretext for discrimination.

Sandra Hicks, an African-American, was a twenty-year civilian employee at the Coast Guard Housing Office at Air Station Cape Cod. In October 2009, she applied for a promotion to Housing Manager. Hicks and Terry Krout, a co-worker, emerged as the top two candidates. The interview panel, composed of three men (two white, one Hispanic), was given the task of interviewing Hicks and Krout and recommending the best scoring candidate. Both candidates were asked the same twenty questions and the panelists ranked the answers on a scale of 1 (lowest) to 3 (highest). Based on the total scores, the panel recommended Krout for the job.

Hicks sued the Coast Guard for race and gender discrimination. The Coast Guard defended its decision not to promote Hicks by offering a lawful, nondiscriminatory reason: Krout was qualified for the Housing Manager position and he outperformed Hicks at the panel interview. Hicks responded that her qualifications for the position were so far superior to those of Krout that any reasonable person would have to conclude that racial and gender discrimination was the real reason the Coast Guard failed to promote her.

Of course, evidence of superior qualifications can be used to prove discrimination. However, in this case, the court found that Hicks did not actually present any credible evidence to prove that she was the superior candidate such that any reasonable employer would have chosen her over Krout. Rather, she argued that, in her own personal opinion, she was more qualified than Krout.

The court was unpersuaded. It explained that an employee’s personal perception of her own job qualifications, in and of itself, is insufficient to support a pretext argument. Instead of focusing on the evidence offered by Hicks, the court looked closely at the resumes of both applicants and found that Hicks’s qualifications were superior in some respects, but Krout’s were superior in others. In this way, Hicks failed to show that she was a plainly superior candidate, which is the standard the court applied.

Hicks offered another argument in case the court did not buy her first one. Even though she admitted both candidates were asked the same twenty questions in the interview, Hicks argued that the interview panel’s reliance on the subjective questions was pretext for discrimination. She claimed that the wording of the questions was generic and not related to the actual job or to the applicants’ experience and that the rating of answers allowed for subjectivity and ad hoc determination creating a “ready mechanism for discrimination.” Specifically, Hicks stated that she took offense to one of the panelists’ tone of voice when he asked her to identify a personal strength and weakness. Hicks labeled the use of the word “weakness” as discriminatory because in her opinion black women have been historically viewed as weak. Other than a contemporaneous recording of the interview, which did not exist, there was no means with which to recreate an interviewer’s tone of voice. Nevertheless, the court held that there was nothing inherently discriminatory about a question asking a candidate to identify her strengths and weaknesses, and the court went so far as to describe the question as “a virtual cliché for job applicants.” Finally, there was nothing discriminatory about the panel basing its ultimate decision on the results of oral interviews, according to the court. Therefore, Hicks was unable to establish that the Coast Guard had discriminated against her under any theory.

Still, this case demonstrates that courts do evaluate carefully the qualifications of job applicants when ruling on cases alleging failure to hire or failure to promote based on unlawful discrimination. Therefore, when making hiring decisions, employers should keep in mind that they may find themselves in a situation where they have to defend those decisions. Being able to articulate specific, job-related reasons for choosing one candidate over another is essential to employers’ success in such cases.